93 Decision Citation: BVA 93-08878
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-48 773 ) DATE
)
)
)
THE ISSUE
Entitlement to a permanent and total disability rating for pension
purposes.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. M. Barnard, Associate Counse
INTRODUCTION
The veteran, who had active duty from April 1968 to December 1970, has
appealed
1990 rating decision of the Chicago, Illinois, Regional Office
(hereinafter RO),
notice of disagreement in July 1990. The RO then issued a statement
of the case
September 1990, to which he responded with a substantive appeal that
same month.
was originally received and docketed at the Board in November 1990.
The veteran
represented throughout his appeal by Disabled American Veterans, which
submitted
written argument to the Board in December 1990. This case was then
remanded by
decision for further development in March 1991. Following compliance
with this
additional rating action was issued in May 1991 which confirmed and
continued th
benefits sought on appeal. The following month, a supplemental
statement of the
to the veteran. Two rating actions confirming the denial of the
benefits were i
July and September 1991. A supplemental statement of the case was
then issued i
1991. The case was once again received and docketed at the Board in
March 1992.
veteran's representative submitted additional written argument to the
Board in A
case is now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that the RO committed error when it denied him
entitlement t
total disability rating for pension purposes. He maintains that his
psychiatric
from working. He states that his bipolar affective disorder is of
such severity
impossible.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991),
following r
consideration of all evidence and material of record in the veteran's
claims fil
reasons and bases, it is the decision of the Board that the evidence
supports th
permanent and total disability rating for pension purposes.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition of
the veteran'
obtained by the RO.
2. The veteran is 44 years old, has three years of college education
and has wo
worker and a clerk-typist.
3. His disability consists of a bipolar affective disorder.
4. The veteran's disability precludes him from substantially gainful
employment
CONCLUSION OF LAW
The veteran is unemployable because of his permanent disability. 38
U.S.C.A. §§
1521, 5102, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.342, 4.1, 4.2,
4.7, 4.15, 4.
4.129, 4.130, Part 4, Diagnostic Code 9206 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran's claim is well grounded within the meaning of 38 U.S.C.A.
§ 5107(a)
find that he has presented a claim which is plausible. We are also
satisfied th
have been properly developed. While the record indicates that the
veteran has r
treatment, we find it unnecessary to obtain these documents,
particularly in lig
benefits sought on appeal are being granted. Therefore, no further
development
order to comply with the duty to assist mandated by 38 U.S.C.A. §
5107(a).
The law authorizes the payment of pension to a veteran of a war who
has the requ
who is permanently and totally disabled. 38 U.S.C.A. §§ 1502, 1521.
If the vet
less than 100 percent, he must be
unemployable by reason of disability. 38 C.F.R. §§ 3.340, 3.342 and
Part 4. "P
the VA's Schedule for Rating Disabilities.
In determining whether an assignment of a permanent and total
disability rating
essential to begin with a review of each of the veteran's
disabilities. Roberts
2 Vet.App. 387 (1992). Moreover, we note that VA has a duty to
acknowledge and
regulations which are potentially applicable through the assertions
and issues r
and to explain the reasons and bases for its conclusion. This
includes the requ
the entire history of the veteran's disabilities. Id. at 390 and
Schafrath v. D
589 (1991); 38 C.F.R. §§ 4.1 and 4.2.
Under the governing criteria, evaluations of a disability are based on
the appli
schedule which is based on the average impairment of earning capacity.
Separate
identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part
4. When
to which of two evaluations shall be used, the higher evaluation will
be assigne
picture more nearly approximates the criteria required for that
rating. Otherwi
will be assigned. 38 C.F.R. § 4.7. In evaluating a psychiatric
disorder, socia
the best evidences of mental health and reflects the ability to
establish health
interpersonal relationships. Poor contact with other human beings may
be an ind
illness. However, in evaluating impairment resulting from a ratable
psychiatric
inadaptability is to be evaluated only as it affects industrial
adaptability. F
of a disability is based on actual symptomatology as it affects social
and indus
Two of the most important determinants of disability are time lost
from gainful
in work efficiency. 38 C.F.R. §§ 4.129, 4.130.
In the instant case, the veteran's bipolar affective disorder has been
assigned
evaluation. Under Diagnostic Code 9206, this requires that there be
definite im
and industrial adaptability. A 50 percent evaluation requires
considerable impa
70 percent evaluation requires symptomatology which is less than that
required f
evaluation, but which, nevertheless, produces severe impairment of
social and i
adaptability. A 100 percent evaluation requires active psychotic
manifestations
severity, depth, persistence or bizarreness as to produce complete
social and in
inadaptability. 38 C.F.R. Part 4, Diagnostic Code 9206.
A review of the record indicates that the veteran has a long history
of psychiat
He was hospitalized at a private facility 10 times between November
1972 and Jan
was originally diagnosed as suffering from paranoid schizophrenia, but
the diagn
changed to bipolar affective disorder. A VA examination conducted in
April 1981
veteran's affect was appropriate and noted that he displayed no
evidence of delu
hallucinations or disorganized thinking. Chronic bipolar affective
disorder, in
diagnosed. The veteran was hospitalized from March to May 1988. At
admission,
to be in a manic state. He was placed on Mellaril and lithium, and
his conditio
treatment team felt that if he failed to take his medication, he would
once agai
himself and others.
A May 1988 letter from R. M. Rodriguez, M.D. a private psychiatrist,
noted that
currently being treated for a mental problem that was recurrent in
nature. He t
veteran might be unable to hold gainful employment. He was again
hospitalized a
between December 1988 and May 1989. He was admitted after an arrest
when it app
he was hallucinating. This was noted to be his 15th psychiatric
admission. At
alert, oriented and agitated. He was also physically aggressive. He
was placed
although he continued to demonstrate manic behavior. This medication
was discon
was begun on Prolixin. He improved and by discharge, was no longer
displaying m
agitation or insomnia. Bipolar affective disorder was diagnosed.
The VA examination conducted in May 1989 indicated that the veteran
was in good
was freely verbal, relevant, logical and coherent. His mood during
the examinat
euthymic. At that time, he displayed no psychotic thought content,
loss of real
cognitive deficits. His insight was deemed to be limited. The
diagnosis was ch
affective disorder, circular type, in partial remission. Following
this examina
wrote in October 1989 that the veteran had had a mental problem for
many years,
required confinement in a mental hospital. He wrote "He [the veteran]
is not at
able to hold any gainful employment."
The veteran filed another claim in April 1990, at which time he
indicated that h
since 1985. He noted that he had completed three years of college and
had worke
worker and a clerk-typist. This claim was accompanied by a letter
written by th
She stated that her son had been hospitalized approximately 14 times
since servi
psychiatric disability. She commented that his physician had stated
that the ve
work because of his condition. She then noted that the veteran
received Supplem
Income benefits. Y. Modali, M.D., a private psychiatrist, wrote in
April 1990 t
been treated for a bipolar disorder since 1972. He then stated that
the veteran
permanent, full-time employment and it is not recommended that he do
so. Additi
caused by work would compound his condition increasing the likelihood
of bipolar
problems.
The veteran was then examined by the VA in April 1991. He gave a
history of bip
with associated thought disorder. It was noted that he was taking
Prolixin and
veteran commented that the use of the medications made him barely
normal, althou
a history of repeated breakdowns, even on the medication. It was
noted that the
been employed since 1985. This last job was as a clerk-typist, which
he lost af
manic episode which resulted in commitment. The mental status
examination noted
psychomotor activity. The veteran stared blankly about the room
during the inte
responded spontaneously. His reality testing was intact and he
demonstrated no
deficits. His insight was limited. The diagnosis was
schizo-affective reaction
remission.
Finally, Dr. Modali submitted additional correspondence in September
1991. He r
April 1990 letter wherein he stated that he had recommended that the
veteran not
commented that the additional stress could cause decompensation
leading to hospi
increased instability due to feelings of failure. He noted that past
attempts a
tendency to decompensate.
After reviewing the evidence of record, we conclude that the 30
percent disabili
assigned to the veteran's bipolar affective disorder is inadequate.
We conclude
clearly demonstrates that the veteran's industrial adaptability has
been severel
psychiatric condition. This is established by the fact that he has
been unable
employment since 1985. In fact, he had to leave this last employment
because of
of his condition. Severe impairment is also demonstrated by the
veteran's tende
decompensate when faced with the stresses of employment. Therefore,
we conclude
70 percent disability evaluation is justified. However, we do not
find that a s
evaluation is warranted at this point. While the veteran's disability
has had a
his ability to work, as well as on his interpersonal relationships, he
does not
manifestations of such severity or bizarreness as to result in
complete social a
impairment.
Nevertheless, since the veteran is now considered 70 percent disabled,
he now me
schedular requirements for a permanant and total disability rating if
he is, in
substantially gainful occupation. 38 C.F.R. §§ 4.16, 4.17. In this
regard, we
veteran suffers from a bipolar affective disorder, a permanent
condition. The p
condition is demonstrated by the length and frequency of his
treatment. He has
treated for this condition for many years, and has been hospitalized
more than 1
disorder has been described by his private psychiatrist as being
recurrent in na
that the veteran has suffered from bipolar affective disorder for 20
years, we f
permanent in nature. After careful consideration, we also find that
the veteran
because of his psychiatric disability. We note that he is in receipt
of Supplem
benefits. Furthermore, his treating physicians have recommended that
the vetera
because the stress of full-time employment would cause him to
decompensate and r
hospitalization. Clearly, the veteran cannot be expected to engage in
substanti
employment when to do so would have such an adverse effect on his
condition.
Considering the effects of the veteran's psychiatric disability,
coupled with hi
Board finds that the veteran is unable to maintain substantially
gainful employm
ORDER
A permanent and total disability rating for pension purposes is
granted.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
D. W. DATLOW, M. D. I. S. SHERMAN
C. W. SYMANSKI
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a
decision of
the Board of Veterans' Appeals granting less than the complete
benefit, or benef
appeal is appealable to the United States Court of Veterans Appeals
within 120 d
of mailing of notice of the decision, provided that a Notice of
Disagreement con
which was before the Board was filed with the agency of original
jurisdiction on
November 18, 1988. Veterans' Judicial Review Act, Pub. L. No.
100-687, § 402 (1
date which appears on the face of this decision constitutes the date
of mailing
decision which you have received is your notice of the action taken on
your appe
Veterans' Appeals.